Zombie Laws

When did our current recession start? 1991? 1999? Maybe as recently as 2005?

Why, don’t be silly, you’re thinking. When you type that question into Google, the earliest answer that comes up is December 2007 – the official date established by the National Bureau of Economic Research (and a date contested by Obama-haters, since that would mean that he didn’t cause the recession). But let’s go with the December 2007 date, because earlier is better for giving the County Council’s “permit extension ordinances” the benefit of the doubt.

Based on the “extraordinary conditions of the current economic market,” the Whatcom County Council approved two ordinances – one in May 2010 and one in December 2010 – allowing project applications that would otherwise expire to be extended. (Here are links to the ordinances – May and December.)

So that would mean that applications that were submitted from, say, December 2007 on would get a little special treatment to help out developers and property owners hurt by the recession. That was all that the County was trying to do. Right?

Maybe a couple of stories about the applicants who got a “hand up” from the permit extension ordinances will be the best way to answer that question.

And so, with apologies to Laura Ingalls Wilder, let’s look at:

1. The Little Industrial Development in the Big Woods

Right around August 15, 2005, attorney Jack Swanson submitted four applications on behalf of several clients, including Gold Star and Valley View Properties. In response to a public records request, the County provided all four as examples of applications that were extended under the permit extension ordinances.

We’ll focus on just one of those applications, Valley View Properties’ “Binding Site Plan” for a commercial subdivision. For the truly nerdy among us, a link to the application is here (large file). An extra page that I inadvertently left out of the scan is here.

The application proposed the development of a 15-lot commercial subdivision on 35 acres of "undeveloped forest" with wetlands. The proposed uses were ""all permitted uses allowed in the Gateway Industrial zoning district,” which includes freight terminals, warehousing, and light industry.

The alert reader will spot a problem right away: the “Gateway Industrial” zoning district, and the County’s decision to allow industrial zoning in rural areas like this project site, was among the problems that led the Supreme Court to find that the County’s Comprehensive Plan didn’t comply with the Growth Management Act.

That’s just one of the reasons that the August, 2005 application date is important.

In Washington, projects get “vested rights” on the date that an application is submitted. That means that the laws in effect on the date of the application determine what can happen on the ground. That’s fine, as long as development occurs pretty close to the application date. But when, as here, development doesn’t occur right away, strange things start to happen.

Old laws come back to life.

Yes, zombie laws lurk throughout Whatcom County. These are laws that are no longer on the books because they’re bad laws. They allow development in or too close to wetlands. They allow urban uses in rural areas. They don’t protect fish, or drinking water, or the people who live in Whatcom County. But they are undead because they cling to old applications, feeding off the future and ensuring that the bad old days live on forever.

This particular application claims protection from at least three zombie laws:

• It claims to “vest” the uses that were allowed under the old zoning.

• It claims vested rights before the County adopted a critical areas ordinance that protects wetlands based on science – in fact, the application went in just a month before the County’s current critical areas law was passed, on September 13, 2005.

• And it claims vested rights under a land division ordinance that the Council adopted in 2000 – back when Marlene Dawson was Chair. The good ol’ days, indeed.

One application, three zombie laws! A pretty good ratio.

So it looks like that old 2005 application expired on November 3, 2009. At least, that’s what Jack Swanson thought when he applied for a permit extension under the Council’s “economic hardship” ordinance. The application for an extension went in on July 19, 2010, and the county decided to extend the application 2 years from July 20, 2010, to July 20, 2012. All that Jack had to do was to sign a “declaration” saying that “the work authorized . . . will be delayed as a result of adverse market conditions and/or the inability to secure financing.”

Now, nobody needs to write in to say that I’m picking on Jack Swanson. As a lawyer, he’s an advocate, and he’s taking care of his client. That’s his job. But it’s not the County Council’s job. The Council’s job is to take care of the rest of us—

--and that includes making sure that our health, safety, and welfare isn’t jeopardized by zombie laws.

For those who shrug their shoulders at the thought of industrial development in a rural area, perhaps drinking water is a more compelling issue. So let’s move on to:

2. The Little Houses on the Shore of Lake Whatcom

On September 28, 1999, Billboard’s top song was “Unpretty” by TLC. Fittingly, that’s the date that applications were submitted for “North Shores Estate,” a 28-unit housing development in the Lake Whatcom watershed.

“North Shores Estates” actually consists of seven “back-to-back” short plats. A “short plat” application creates four or fewer lots. It’s easier to get short plats approved than long plats (five or more lots). So applicants like the loophole of being able to pretend that their larger developments are “short plats,” even when the development – like this one – is far from “short.”

“North Shore Estates” is located within a "Suburban Enclave", another rural land use designation that the Supreme Court found to be noncompliant with the Growth Management Act. Its 28 lots range in size from 1.02 acres to 2.49 acres.

At the time of the application, our current critical areas ordinance, which is based on “Best Available Science” and requires wetland protection, was not in effect. Roads and building sites are planned within zero to ten feet of wetlands, which of course will not protect the wetlands.

But there’s more. These applications were submitted less than one month before the County adopted restrictions on seasonal clearing in the watershed. So road building, clearing, and grading for the development of these 28 watershed lots could occur at any time, including the rainy season, allowing additional runoff into Lake Whatcom.

What if those applications had expired, rather than being extended? The applicant would have to apply under current standards. That would mean five-acre lots, not one – to two-and-a-half acre lots. That would mean wetland protection and seasonal clearing restrictions.

These aren’t the only stories. The longest, most drawn-out application of the bunch might be called “Little Condos on the Golf Course.” I spent several frustrating hours going through three boxes of records pulled out of the recesses of Planning and Development Services, trying to figure out what the heck was going on with a golf course development in Point Roberts. In its response to the public records request, this is one of the applications that the County said had been extended under the 2010 ordinances.

That application was first submitted in 1987, and no, that’s not a typo. 1987. Back before most of my college students were alive. It supposedly vested in 1991. A letter in the file showed that, by the mid-1990s, planners were getting frustrated that this application had hung around for so long.

And it’s still with us.

I have no idea how anybody could know what conditions apply to the project, based on the state of the files – and I couldn’t find out whether the applications had, indeed, been extended under the 2010 ordinance. I did see applications for 63 condo units, submitted in 2011, and presumably relying on “vested” rights from 1991.

So – why did the County Council extend these old applications, and many more? Was it really a response to the economic crisis? Well, you be the judge. Take into account this statement in the December ordinance: “This ordinance shall not remove the vested permit expiration timeframe calculation for permits already granted a one-time economic hardship extension under the previous interim permit extension ordinance.”

Here’s what that convoluted sentence means. The previous ordinance, approved in May, had actually allowed expired permits to be extended. After an outcry about the egregiousness of a law that claimed the power to revive null permits, the Council didn’t try to revive expired zombie permits in the December ordinance. But that vesting provision made sure that the zombie permits would survive, and that zombie laws would continue to govern our county.

Neither the Council nor the public had any information about how many permits would be extended, where they were located, or what the environmental impacts of extending these permits would be. These are all issues raised by David Stalheim, yes, Get Whatcom Planning’s own David Stalheim, in a petition to the Growth Management Hearings Board, challenging the permit extension ordinance.

To be frank, I told him not to do it. He was already spending all of his nights and weekends on the successful Ferndale Urban Growth Area petition, and doing absurd amounts of work to record the planning and legal problems with the Rural Element. But, as usual, he didn’t listen to me, and I’m glad.

For those who might be interested, the brief that he submitted to the Board on Monday is here. Win or lose, it tells a story that needs to be told. It’s the story of the zombie applications that keep the zombie laws alive to feed on the living – us, our kids, our drinking water, our shorelines, our fish and wildlife.

All food for zombie laws.